Offences Against Public Administration: The Offence of Bribery (Articles 419–427 BIS of the Criminal Code) After the Recent Reform Introduced by Organic Law 1/2015

NATURE AND SCOPE OF APPLICATION

The development of this exposition requires some preliminary considerations regarding the offences of bribery regulated in Chapter V of Title XIX (Articles 419 to 427 bis of the Criminal Code). These offences fall within the typologies commonly referred to as corruption or bribery in the sphere of public service, a phenomenon as old as the existence of the Administration itself.

The type of corruption referred to here arises within the framework of the economic relationships between the public and private sectors, particularly in the exchange of favours between public officials and private individuals. At the same time, it must be acknowledged that when personal and institutional relationships come into play, the dividing line between lawful actions and conduct guided by corruption can become dense and complex.

The offence of bribery primarily protects the prestige and effectiveness of Public Administration, ensuring the integrity and impartiality of its officials as well as the effectiveness of the public service entrusted to them (Supreme Court Judgment of 27 November 2006). Thus, this offence seeks not only to safeguard the rectitude of public service, but also to guarantee the integrity and reputation of that function and of the officials who perform it, who must be protected from any unjust suspicion of venal conduct.

From this perspective, it can be stated that the purpose pursued by the legislator when criminalising the various forms of conduct is not only to protect the principle of impartiality in the exercise of public functions, which is common to all forms of bribery, but also to defend the principle of legality in administrative action.

Likewise, the offences of bribery have been doctrinally analysed through different classifications. For systematic and normative orientation purposes, the following distinctions may be highlighted:

a) Active and passive bribery
Active bribery is committed by the private individual who corrupts or attempts to corrupt a public official or authority through gifts, presents, offers or promises. Passive bribery is committed by the public official who requests, receives or accepts the bribe.

b) Proper and improper bribery
Proper bribery occurs when the purpose of the bribe is to obtain an act inherent to the office that is contrary to the legal system. In improper bribery, the act is also inherent to the office but in accordance with the legal system.

c) Antecedent and subsequent bribery
In antecedent bribery, the bribe takes place before the relevant administrative act is adopted. In subsequent bribery, the bribe or attempted bribe occurs after the act inherent to the office has already taken place.

The homogeneity among the different types of bribery offences (Articles 419–427 of the Criminal Code) has been expressly affirmed by case law. The apparent heterogeneity among the various forms of bribery is more apparent than real, since the legal interest protected by their different criminal modalities is perfectly unifiable.

As stated by Supreme Court Judgment No. 362/2008 of 13 June, a modern doctrinal trend emphasises the need to pursue, through criminal law instruments, all activities that reveal corruption among public officials and that jeopardise the democratic credibility of the State’s administrative system.

From this perspective, there is a tendency towards a unitary policy aimed at harmonising all forms of conduct that represent corrupt behaviour. Thus, among others, Supreme Court Judgment No. 692/1997 of 7 November recognised the aforementioned homogeneity between Articles 420 and 426 of the Criminal Code, since the elements of one offence are included in the other, so that it cannot be said that the accused has been left without a defence.